Breaking Bad copycat murder plot: Cedar Rapids Criminal Lawyer explains

The Iowa Supreme Court has ruled on a criminal case it says is one of life imitating art—specifically, a defendant allegedly plagiarizing a murder plot from the Breaking Bad series. In State v. Retterath, a Defendant appealed his convictions for solicitation to commit murder, attempted murder, along with other personal crimes against an unnamed victim known only as “Cal.”

In Retterath, two of the Defendant’s associates went to police to report that the Retterath defendant had asked them to participate in a murder plot to mix ricin, a poison extracted from castor beans, with heroin, to poison “Cal,” citing to a similar Breaking Bad plot.

The associates, including one named Sellers, told police that the defendant had repeatedly showed them castor beans but admitted that he had never shown them the extracted poison. According to at least one of these informants, the defendant also had considered an alternative, more violent plot against “Cal” which required a list of implements including: duct tape, a Sawzall®, and garbage bags, presumably to dismember and dispose of the victim. Already under indictment for crimes against “Cal,” police also then charged the Retterath defendant with solicitation to commit murder and attempted murder.

During the discovery process of the defendant’s Iowa criminal defense for all of the alleged crimes, both the Retterath defendant and the prosecutor had access to a deposition from an unrelated case in which one of the associates admitted he suffered from schizophrenia and was, as his parole officer put it, “one of the best liars they’ve ever dealt with.” He admitted lying to police about unrelated matters and to mixing his own prescription medications with alcohol. He reported that his illness caused auditory hallucinations and that the alcohol and prescription drugs made him “loopier” than when he did not mix them.

Because the defense suspected his mental health records might cast doubt on the schizophrenic informant's claims, the defendant requested mental health records for impeachment purposes under a state law allowing same. The district court ordered the State to procure and disclose them. The State attempted to obtain the records from two federal agencies, including the Social Security Administration, and both federal agencies refused, stating a failure to follow the correct protocol. In one such inquiry, the Office of the General Counsel for the Social Security Administration directly refused the request.

After significant back and forth, the trial judge and the lawyers apparently abandoned further efforts to insist on federal disclosure of the schizophrenic informant’s records. The judge decreed they were unobtainable and ruled that they must be presumed to contain “exculpatory,” or, exonerating information. The judge ordered a new trial and barred the schizophrenic informant from testifying. The State appealed.

The Court of Appeals held that there is no right to a new trial when neither the State nor the Defendant can “find” exculpatory evidence outside their files. The Iowa Supreme Court agreed, stating that there must be some “bad faith” on the part of the prosecutor to presume the unobtainable records are automatically favorable to the Defendant—and, in any case, this is on the Defendant to chase down alternative theories of defense and impeachment material.

Why this is important: the Iowa Supreme Court placed the burden on the defendant and their Iowa criminal defense lawyers to leave no stone unturned. It won’t be on the prosecutor to find evidence of alternative theories of defense or impeachment material that is absent from the prosecutor’s file. While that’s always been true, this puts a fine point on a Cedar Rapids criminal lawyer’s duty to leave no stone unturned.

Why else is it important? Because it again pays homage to the fiction that the prosecutor is powerless to provide what is not in their file. It is frequently a dodge for prosecutors to allege that they do not have something in their files when it is almost certainly in the possession of another state or federal agency—or easily could be. The Retterath case was a dramatic example of a prosecutor not having access to something allegedly exculpatory—in this case privileged mental health records that federal agencies possessed instead. But what if the prosecutor wanted them? They could have issued a law enforcement related, county attorney subpoena for which there already exists a HIPAA exception. Moreover, federal and state authorities frequently share law enforcement information. But in this case, it was clear that the defendant wanted this information and it may have been helpful to the defense. So it is no surprise that federal agencies refused to cooperate. The Court then ruled it was up to the defendant to find other ways to obtain the information if they cannot pierce the patient-counselor privilege or HIPAA becomes an obstacle.

Similar examples of prosecutors pleading ignorance in more mundane misdemeanor prosecutions: when law enforcement agencies possess body cam, dash cam, or jail surveillance video that may be helpful to the defendant but law enforcement agencies, themselves, do not turn all of the video or videos over to the county attorney. The prosecutor claims that the law enforcement officers and their agencies do not work for the prosecutor. But this is a legal fiction. In most cases, there is very little daylight between prosecutors and police. They work hand in glove with one another and if a prosecutor "advised" a law enforcement agency to provide over some material in their possession, you can bet they would or should do so.

This case also draws attention to an important aspect of impeachment. Is it appropriate to impeach a witness on the basis of their mental health diagnosis? The statute allowing defense counsel to "pierce," or, break, the patient-counselor privilege exists in state law to allow this kind of discovery for the purpose of casting doubt on a patient's perception of reality but how will it play in front of the jury? It seems like the deposition transcript that both sides already possessed-- the one where the schizophrenic informant admitted to lying to police in unrelated matter, being "loopier" when he mixed his prescription medication, and having a reputation for untruthfulness in the parole office-- was already sufficient impeachment material. Would it look like unnecessary bullying to impeach him with his own treatment records? These are important razor thin distinctions a criminal defense lawyer must draw. But in this case, more information is not necessarily better.

NOTE: David A. Cmelik Law PLC had no role in the Retterath case.

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